During the COVID-19 pandemic, places of worship in Australia have faced significant restrictions. These include limiting the number of people who can join, banning songs, and shutting down altogether.
It has affected the freedom of religion of the people. However, like other COVID restrictions, religious people have generally accepted these restrictions to protect public health.
Now, there may be a light at the end of the tunnel for religious institutions, including allowances for a certain number of unvaccinated people to attend places of worship. But as states and territories will set their own rules for reopening public spaces, religious leaders still face uncertainty.
If some places of worship are not allowed to enter without vaccination, religious leaders may be forced to turn them away, putting them in an uncomfortable position.
This brings up an interesting legal question about balancing freedom of religion against public health protections.
How are NSW and Victoria handling this?
At 70% full vaccination for adults, places of worship in NSW, with some restrictions on capacity, and no singing, will be able to open to vaccinated people.
Once the vaccination rate reaches 80%, non-vaccinated people will be able to attend public worship, with similar capacity limits.
They will not be allowed to go to other public places, such as restaurants, stores, hairdressers or gyms, until December 1 at the earliest. And the government has warned that businesses could continue to restrict access to people who have not been vaccinated.
Victoria has taken a different approach. At a 70% full vaccination rate, places of worship will be able to hold outdoor services at one person per four square metres, with a cap of 50 vaccinated people. If the vaccination status of attendees is unknown, the attendance limit will be 20.
Indoor worship will be allowed at 80% complete immunization, fully immunized with a cap of 150 and social distancing.
Outdoor worship will be allowed for 500 vaccinated people. If the vaccination status of worshipers is unknown, the 20-person cap and one-person-per-four-square-meter rule will remain.
It remains to be seen how other states and territories will handle these decisions when they release their reopening plans.
Why can I go to church without vaccination but not my feet?
The NSW government has not given an official reason for opening churches, mosques and temples without vaccination, but not entertainment or sports venues.
Possible reason is freedom of religion.
Many religions include an element of communal worship and public gathering. The COVID restrictions have significantly restricted these practices. In fact, public gatherings have been banned outright under strict stay-at-home orders. As a result, many religions have moved to online or streaming-based worship.
Freedom of religion is well recognized as a fundamental human right in international law. Article 18 of the United Nations International Covenant on Civil and Political Rights states that the right to freedom of religion includes
To profess or to adopt a religion or belief of his choice, either personally or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
But this freedom also has a limit. The same covenant says freedom of religion
may only be subject to such limits as are prescribed by law and are necessary for the protection of public safety, order, health, or morality or the fundamental rights and freedoms of others.
A bigger question, then, for state prime ministers as they begin to lift COVID restrictions: To what extent are restrictions on religion necessary to protect public health?
Because there is considerable variation among states and territories about whether COVID restrictions are necessary to protect public health, we should expect different approaches to the reopening of public places of worship.
Read more: ‘The blood of Jesus is my vaccine’: how a fringe group of Christians hijacks faith in the war on science
Some challenges to vaccination regulations
This may create confusion, but it is unlikely that we will see many legal challenges to the various reopening plans.
In Australia, there are only a few ways to challenge restrictions on freedom of religion. The Constitution prohibits the federal government from making laws to restrict the free practice of the religion. However, the COVID restrictions have been imposed by the state and territory governments. The provision of freedom of religion in the constitution does not apply.
As such, the main legal protections for freedom of religion in Australia are religious exemptions and anti-discrimination laws.
There are some medical exceptions available for those who cannot get the COVID vaccine, but little exemption will be given to those who oppose vaccination on religious grounds.
There are currently no religious exceptions to childhood vaccination programs under federal “no jab, no pay” and state “no jab, no play” policies. In the case of vaccines, religious freedom is outweighed by the need to protect public health.
The anti-discrimination law is unlikely to provide an opportunity to challenge a vaccine order, a ban on unvaccinated people from passports or places of worship.
In determining whether discrimination has occurred, courts will consider what is appropriate in the circumstances. Given the very real and significant public health risk posed by COVID, it is possible that a ban on people who have not been vaccinated would be considered appropriate – at least in the short term.
This may change if the health risk posed by COVID changes.
religious leaders’ concern
Some religious leaders have expressed concern over the new rules for reopening places of worship. As Bishop Paul Barker of the Anglican Diocese of Melbourne put it, the rules could change those who do not show proof of vaccination to “lepers of Jesus’ Day”.
Religious leaders can be forced to distance themselves from the unaffiliated. Such a situation can be very difficult religiously for many religions.
As Anthony Fisher, Archbishop of the Catholic Diocese of Sydney explained,
It is our nature as churches to open our doors to welcome all people. We have a commitment to this, so we are currently talking to the government about how it will work.
However, it is important to note that, with few exceptions, religious leaders have generally been supportive of vaccination.
What does this say about freedom of religion in Australia?
Australians enjoy a relatively high degree of freedom of religion. In the 2019 Pew Research Center’s index on global restrictions on religion, Australia scored among the least restrictive group of nations.
This is despite the fact that Australia does not have a national bill of rights, nor is discrimination based on religion illegal at the federal level.
Read more: Why Australia needs the Religious Discrimination Act
However, this does not mean that Australia can be complacent. The lack of laws protecting freedom of religion means it falls on the political process to be sure. This in turn depends on who is in power and the will of the majority.
In the same Pew report, Australia had a moderate score on social hostility towards religion. This means that more legal restrictions are likely to be imposed in the future.
The recognition of the need for religious freedom in the COVID re-opening roadmap is welcome. However, we should not lose sight of the fact that if the political process does not provide for legislative religious freedom, we have few legal avenues to challenge government restrictions when they are.